132 Ala. 120 | Ala. | 1902
— In January, 1888, under a decree of the chancery court defendant Andrews as register in chancery sold for division certain lands from the proceeds of which complainant was entitled to $5,190.80 and Thomas Bond and his three minor children weré each entitled to $1,297.70. Prior to February 26, 1890, the purchase money had all been collected by the register who Avithout authority had placed it by general deposits in the. private bank of defendant Campbell. Previously an order had been made in the same case which, conditioned upon his giving bond, appointed Campbell trustee for the interested minors with authority to receive their shares of the funds, but he had not accepted the trusteeship or given the required bond. On the last mentioned day the register having reported collection in full another order was made appointing Campbell as trustee to receive the money of all the infants upon his giving bond but he did not accept or give bond under that order. In August, 1890, Campbell, and his bank failed financially and the money of complainant and the Bond children became lost to them and to the register. Before his failure Campbell transferred to Andrews certain dioses in action as security for the deposit made
The bill is not subject to the demurrer. It is not a bill of review but one which -seeks the ascertainment and enforcement -of complainant’s interest in a security consisting of the register’s -official bond, and to vacate de-cretal orders as fraudulently obtained, in so far as they purport to acquit him and his sureties of responsibility for complainant’s money collected by the register for her land, and also to subrogate complainant to the rights of Andrews the register in "securities alleged to have been given him by Campbell on account of -deposits of her money in his bank. For these purposes the bill has equity as an original bill. Without doubt the orders of court recognizing the payment by Andrew's the register to Campbell as trustee of complainant’s money were procured by the register’s fictitious- report of such payment together with his concealment of the fact that the money had previously been lost by the bank failure. Such action of Andrews by whatever motive prompted, amounted to a fraud "without which the orders assailed would not have been entered and they were properly vacated by the decree in this cause. The vacation of de
The fruitless prosecution by compainant’s guardian of proceedings for a settlement by Campbell as trustee does not preclude, complainant from pursuing such remedy as she would otherwise have had upon the register’s bond. To bind an infant to an election of remedies which will prejudice her interest is not within ¡the scope of a guardian’s representative power.
The general deposit of the land proceeds in Oampbell’s bank amounted to a loan, which being unauthorized by the parties interested or by any order of court was an unlawful disposition of these proceeds.—Alston v. State, 92 Ala. 124. The proposition that the register is a proper custodian of moneys, belonging in the chancery court in a sense that binds his bondsmen for a misappropriation of such moneys, is not disputed and is fully supported bv the authority of Coleman v. Orman, 60 Ala. 328.
But it is contended for appellant that the money he furnished ito pay the Bond children should be taken as discharging the pro tanto his liability on the register’s official bond, and that because a surety’s obligation is limited by the penalty of his bond, he cannot be held liable to complainant in excess of the difference between the sum lie so furnished and the penality of that bond. By his own testimony it appears appellant was partly if not solely the author of the plan whereby Campbell was constituted trustee and ostensibly the recipient in that capacity of complainant’s money. If as he testifies this course was adopted to protect complainant’s interest it is apparent that he contemplated also that the plan would operate to shift responsibility for that money from the register, and consequently from himself as surety on the register’s bond. Assuming the plan would succeed in these objects it became immaterial to his interest whether the Bond children were paid by him as a surety or by the register, and the latter course must have commended itself to appellant because of its tendency to avert from his brother the register the consequences of official delinquency. The double motive to so shield ¡the register and protect himself would nat
Let the decree of the chancery court be affirmed.